Tech Savvy Judges and the Challenge of Jurors Conducting Online Research

Why would a juror’s online research be a “problem” for a criminal defendant?

Because an “extrinsic influence on a jury’s deliberations violates a defendant’s Sixth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial.” United States v. Dyal, 2010 U.S. Dist. LEXIS 72489, at *38 (D.S.C. July 19, 2010).

One tech savvy judge tried to head off any Constitutional challenges that may befall modern jurors who are packing SmartPhones and a high speed Internet connection.

The Judge instructed the jury, both orally and in writing, the following:

I remind you that during your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet device, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Dval, at *8-9.

Despite these instructions, one curious juror did a Google search and looked up two words on Wikipedia and the Free Miriam Webster Dictionary. Dval, at * 30-31. When the Googling Juror brought this to the attention of the Jury Foreman, he was told Wikipeda is not reliable. Dval, at *52. Moreover, when the Googling Juror tried sharing this information with others, he was cut off from discussing it. Dval, at * 52-53.

The Court held a hearing after the online research was brought to light to see if the jury had been tainted in its decision.

After questioning of each juror, the Court found that the online research was juror misconduct, because the information was an improper external influence. However, this was not prejudicial per se. Dval, at * 55.

The Court found that there was “no reasonable possibility that the external influence caused actual prejudice.” Dval, at * 55. This was based on the extensive questioning of all the jurors, which showed the Googling Juror had little to no influence on anyone and secondly, the terms he found were consistent with the jury’s own understanding of the terms.

Bow Tie Thoughts

It is very refreshing to see a judge try to head off problems in an age where people can whip out a SmartPhone and conduct an internet search for an instant answer.

Judge Cameron McGowan Currie’s went out of his way to remind the jurors what not to do during deliberations, specifying naming some of the most commonly used social networking sites. The jurors to their credit also were quick to avoid inappropriate conduct.

This will not be the last time a Court will need to do this sort of review, but it is a great roadmap on what to do when there is a juror conducting online research.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.